Boundary Work between Computational ‘Law’ and ‘Law-as-We-Know-it’

This chapter enquires into the use of big data analytics and prediction of judgment to inform both law and legal decision-making. The main argument is that the use of data-driven ‘legal technologies’ may transform the ‘mode of existence’ of law as-we-know-it, whose characteristics depend on its text-based nature. To explain why and how computational ‘law’ would be different, the author deciphers the mathematical assumptions of machine learning and natural language processing, opening the black box of algorithmic ‘insights’ at the level of its underlying research design. This allows her to compare the force of such computational ‘law’ with the force of law as-we-know-it. She then identifies some of the challenges as to legal protection, demonstrating the need for ‘by design’ approaches to anchor rule of law safeguards in the architecture of computational ‘law’, clarifying how and why ‘legal protection by design’ is not equivalent with ‘legal by design’ or ‘techno-regulation’.